MZZFU v Minister for Immigration - [2013] FCCA 1986

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1986

Catchwords:
MIGRATION – Adjournment ruling.

Legislation:
Migration Act 1958 (Cth)

Du v Minister for Immigration & Citizenship [2011] FMCA 753
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

First Applicant:

MZZFU

Second Applicant:

MZZFV

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REGUGEE REVIEW TRIBUNAL

File Number:

MLG 153 of 2013

Judgment of:

Judge Burchardt

Hearing date:

18 November 2013

Date of Last Submission:

18 November 2013

Delivered at:

Melbourne

Delivered on:

18 November 2013

REPRESENTATION

The Applicant:

In person (assisted by Ms Ratnajeya)

Counsel for the First Respondent:

Mr Wood

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

THE COURT ORDERS THAT:

Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”
The applicant to file and serve any written submissions on or before 29 November 2013.
The matter be adjourned to this Court for hearing before Judge Burchardt on 6 December 2013 at 2.15pm.
The applicant pay the first respondent’s costs of today thrown away by reason of the adjournment.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 153 of 2013

MZZFU

First Applicant

MZZFV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter today, the applicant is represented by Ms Ratnajeya who is a, if I can put it this way, a friendly force from the same community but who is not legally qualified, in the absence of Mr Fernandez, the applicant’s lawyer on the record. The week before last, it was indicated by the applicant that an adjournment would be sought and the first respondent made it clear that that was opposed. The application could not be ruled upon in Chambers and has been repeated by Ms Ratnajeya today. Essentially, the reasons put for the adjournment application are twofold.
First, it is said that Mr Fernandez, who is acting pro bono for the applicant, will know by January whether his health will have improved sufficiently to enable him to conduct the case or whether he will have to obtain somebody else to do so. His position, as I understand it, is that it is within his capacity to obtain somebody else to conduct the matter on the applicant’s behalf, notwithstanding that one would infer it would be pro bono representation. The second reason advanced is that the applicant is very strongly stressed by these proceedings and simply would not be capable, on any view, of representing herself in Court today.
The reasons for the first respondent’s opposition to adjournment have been forwarded in writing and I would paraphrase the matters as follows. There was a consent adjournment earlier in the year on the same footing. That is to say Mr Fernandez had indicated he was not in sufficiently good…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1986
Decision Date: 18 November 2013

CaseChat Overview and Summary

The applicant, MZZFU, sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the Minister's decision to refuse to grant MZZFU a visa. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in law when assessing MZZFU's eligibility for the visa. Specifically, the Court was required to determine if the delegate had failed to consider relevant information or had taken into account irrelevant considerations when making the decision.

Judge Burchardt found that the delegate had indeed failed to consider crucial information that was before them at the time of the decision. This failure constituted an error of law, as it meant the delegate had not properly exercised their power under the relevant legislation. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to consider all relevant material placed before them.

Consequently, the Court quashed the delegate's decision and remitted the matter to the Minister for redetermination according to law.

Orders